The NHS complaints procedure

The complainant's perspective

There are many motives for making a complaint but it is likely that the majority arise when a service user or carer is unhappy about the treatment or care that they have received. Some will be vexatious but most will relate to genuine concerns. Medical errors can have serious consequences so tolerance of mistakes is low. However, the link between whether a patient sues and complains and their standard of care is not straightforward. In a US study (Reference ThomasThomas 2010) only 3% of patients seen as being negligently harmed started litigation and only a fifth of cases brought to lawyers were for clearly negligent harms.

The true rate of medical errors may never be known (Alberti 2001) but it is likely that only a minority result in a complaint and even fewer in litigation. Patients’ expectations may have been formed by watching medical soap operas, political rhetoric and media stories of medical breakthroughs. When confronted with the realities of medical practice it is perhaps surprising that there are so few formal complaints. The sometimes differing perspectives on medical errors between the public and doctors are described by Reference Blendon, DesRoches and BrodieBlendon et al(2002). In this survey of clinician and public views on medical errors the public attributed 81% of the main responsibility for a medical error to the doctor, whereas doctors reported a figure of 70%. Complainants may also suspect that doctors will collude with each other in investigating a complaint and that the process will be a whitewash.

If a patient wishes to pursue a complaint then there are a number of possible avenues open to them. In addition to the NHS complaints procedure they may call NHS Direct, approach their local Citizen's Advice Bureau, consult a solicitor or go to the press. Patients can receive support in making their complaint from their patient advocacy and liaison service and the Independent Complaints Advocacy Service. (In Scotland advocacy is provided by the Advocacy Safeguards Agency and the Scottish Independent Advocacy Alliance.) The patient can also approach the General Medical Council (GMC), which has a web page outlining, depending on the nature of the complaint, the most appropriate place to which to make the complaint (General Medical Council 2010). The GMC receives around 4500–5000 complaints a year, of which a third meet the necessary criteria and are pursued.

The organisation's perspective

Complaints are a quality indicator for trusts and health boards from both an internal and external perspective. The number of complaints received by a trust or board may be seen as a sign of poor standards of care, especially if media attention follows. Complaints lodged by Members of Parliament on behalf of constituents will also cause concern for the organisation. These factors may influence how the organisation responds to a complaint. It might be anticipated that a high-profile complaint that causes the organisation anxiety will be prioritised and the clinicians involved may be encouraged to expedite their responses.

Complaints may also flag internal areas of concern to the organisation, such as poorly performing individuals or clinical areas. Paradoxically, if no complaints are received about individuals or clinical departments, managers may begin to wonder about the clinical throughput. Even if a complaint is not upheld, there still may be an opportunity for the trust or board to improve performance.

As complaints may herald the start of litigation, the organisation may have a financial incentive in managing and resolving the complaint. Organisations in the NHS also have a timeline for responding to complaints. This does not always help in resolving them but there is scope to negotiate with the complainant. This may also indicate to complainants that their concerns are being taken seriously.

The psychiatrist's perspective

Psychiatrists who are made aware that a complaint has been made against them can experience a variety of emotions, including shock, denial, anger and a feeling of being undervalued. These reactions may be modified by their seniority, experience of previous complaints, view of the particular complaint (or complainant) and workload. Other personal issues such as current stress levels and health may also be relevant factors. Psychiatrists’ unique training and understanding of transference and psychodynamic defence mechanisms may help mitigate the personal effects of complaints. As complaint is an emotional word with negative connotations, conceptualising a ‘complaint’ as a ‘concern’ may reduce this negativity and its accompanying stress.

Doctors in training may feel particularly vulnerable to the complaints system and view a complaint as a serious impediment to their career progression. However, for this group in particular it is important not to view complaints negatively, because they may provide an opportunity for reflection, thereby becoming an invaluable learning experience (Box 1). Trainers may take the view that a doctor in training who never receives a complaint may be achieving this by inappropriately agreeing with patients, thus compromising his or her clinical integrity. Examples include not detaining patients, allowing inappropriate discharge, and inappropriately supporting benefit applications or recommendations regarding driving.

Doctors may be concerned that the number of complaints or claims of clinical negligence may be used as a performance indicator by their employers (British Medical Association 2009). Although complaints may trigger necessary investigations into a clinician's work, they are potentially stigmatising and there may be better ways of evaluating clinical performance. Of course, a number of complaints about a specific area of practice may lead to further action. For example, complaints about poor communication skills could be triangulated with the results of 360-degree feedback, appraisals and observing clinical practice to ascertain whether a problem exists. Many complaints are about ‘rudeness’, which is difficult to investigate as often there is no other party involved (Reference Williams and LalandaWilliams 2008). Complaints about rudeness can also reflect cultural differences and expectations.

Psychodynamic and other aspects of complaints

We have generally taken a pragmatic view of complaints in this article but we appreciate the myriad interpretations that can be brought to bear on a complaint and the response. Knowledge of psychodynamic defence mechanisms, group and organisational dynamics is undoubtedly useful in clinical work, but refusing to respond to a complaint because it represents a patient's transference issue is unlikely to be an acceptable response to the organisation.

Models developed to describe challenging patients are relevant to understanding and managing complaints (Reference GrovesGroves 1978). Patient factors such as certain personality disorders, paranoid traits, egotistical overdevelopment, relationship dysfunction and a critical approach may increase the likelihood of an unsatisfactory consultation and hence a complaint. Of course, doctors may also have these traits, which may predispose them to receive more complaints than average (Reference Steinmetz and TabenkinSteinmetz 2001). Other doctor-related factors that may increase the chances of a complaint include narcissism, poor communication skills, poor psychosocial skills, cultural gaps, lack of experience and stress/overwork (Reference Haas, Leiser and MagillHaas 2005).

Responding to informal complaints

How an informal complaint is handled will often determine whether a formal procedure is invoked. There is considerable overlap between clinical consultation skills and skills used to resolve complaints. The first step is to recognise and acknowledge the patient's concern. The next is to ascertain their perception of what happened and why they are concerned. For example, a patient who has been waiting for an hour in clinic may be agitated when seen because the receptionist has been rude to them and not because of the wait. Reassurance, an explanation and, where appropriate, an apology may resolve the issue there and then. If immediate resolution cannot be achieved, a follow-up meeting or correspondence may help. If the complainant is not satisfied by an informal response, they should be given information on the formal complaints system.

Saying sorry

Doctors are often concerned that saying sorry may be seen as an admission of liability and will have potential consequences if litigation is pursued by the complainant. However, Reference HoldenHolden (2009) observes that ‘saying sorry and providing an explanation to a patient or relative seldom does any harm and can often avoid a complaint’.

This observation is supported by Section 2 of the Compensation Act 2006, which states: ‘An apology, offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.’ According to the GMC, a doctor should offer ‘an apology and explain fully and promptly to the patient what has happened, and the likely short and long term effects’ (General Medical Council 2006).

The complaints process in practice

Trusts and boards have formal complaints mechanisms in place, and practitioners will be asked for their response in order to facilitate local resolution (Box 3). They will need to review the case notes and respond fully to every point outlined in the complaint, acknowledging with regret any shortcomings and giving explanations. If matters are more complicated, the complaint may require detailed investigation. This investigation may range from checking details to formal interview. A meeting with the complainant, the complaints manager and medical manager may also be necessary.

Appeals are not unusual, and may be sent for local independent review and then to the Health Service Ombudsman, depending on the jurisdiction. Appeal processes may not confine themselves to the complaint and may also evaluate and comment on clinical practice.

Practical tips on responding to formal complaints

Some complaints may be anticipated by the clinician and the basic groundwork already done in anticipation. However, some will come out of the blue, usually when practitioners are at their most busy (or so it seems). The following tips are addressed to any professional against whom a complaint has been made.

When dealing with a complaint, treat it as important, but try not to get too distressed or annoyed (Box 4). Read through it at least twice. Unless an immediate response is required, reread it the next day. Hopefully, by this time you will be able to read it in a more reflective manner. Do not respond until you feel that you are calm and collected.

Discussing the complaint with colleagues even in abstract terms may help, but be aware of confidentiality issues.

An intemperate response may be censored by a complaints manager but may find its way into the final reply, which will not aid resolution. Try to put it into the context of the interview/situation described. Respond quickly and as comprehensively as you can. Try to put your version of events, but do not get overly defensive. For example, if complainants are concerned that their health has not improved, it might be appropriate to remind them that they have failed to take prescribed treatment or attend therapy sessions. Make sure you use jargon-free language that can be understood by the lay person and always explain the reason for taking the decision that led to the complaint. If you feel that an apology is due, make it.

If you are a trainee psychiatrist, discuss the complaint with your educational/clinical supervisor. A formal complaint letter will usually go to your consultant, who can help you to draft an appropriate response and enable you to reflect on aspects of your practice that led to the complaint as well as what has been learnt from this.

Finally, remember that the complaints manager has not made the complaint. Don't shoot the messenger and remember that these individuals have externally imposed deadlines for dealing with complaints. They are a useful resource, especially when responding to your first complaints.

Occasionally complaints may become public and usually the organisation's chief executive, in liaison with the medical director and communications manager, should manage any media interest or adverse publicity. Doctors would be ill-advised to respond directly to media interest. The press can be intrusive, and in a high-profile case the clinician should seek advice from their defence organisation and employers on managing this aspect.

Complaints can be a positive experience

The case study in Box 1 demonstrates how complaints can bring about positive change to a doctor's professional practice and play a vital role in continuing professional development at every stage of a doctor's career. Investigating complaints or sitting on the relevant committee is another way of benefiting from the complaints procedure. Under the 2009 Regulations all trusts and boards must provide reports on complaints statistics and examples of points learnt.

Sometimes it may be problems inherent in the doctor's roles and responsibilities that lead to complaints. For example, a junior doctor who is not provided with sufficient clinical supervision may find himself making decisions that lie beyond the realms of his expertise and may therefore make mistakes that result in complaints. A frequent source of complaints is seeing a different doctor each time, which may prove difficult to address but may lead to staffing changes that benefit everyone. Indeed, doctors may encourage complaints about services as a mechanism for change.

Handling repeated complaints

Doctors in the NHS have an annual appraisal that should involve a review of any complaints, allowing both doctor and appraiser to undertake a trend analysis to identify any recurrent themes. An experienced appraiser will be able to benchmark that doctor against others within the organisation to establish whether the number of complaints received is within the expected range.

The unit in which the doctor works may also have a system in place to identify trends in complaints. Even without the intervention of such a system or appraisal it should be considered good practice to review complaints reflectively. If problems are identified then the trust or board should help with the remedial action to improve performance. Complaint managers can also support the appraisal process by providing information on complaints received, including themes and trends.

A doctor experiencing stress related to their professional as well as private life may be vulnerable to complaints due to underperforming at work. If you think such a description applies to you, you may want to discuss the situation with a trusted colleague. It may be appropriate to see your general practitioner and consider taking a period of sick leave, if deemed appropriate. Other sources of help for sick doctors include staff support schemes run by their trust or board, counselling services offered by the British Medical Association, and the Psychiatrists’ Support Service of the Royal College of Psychiatrists.

Negligence

Complaints may herald a clinical negligence claim. More than 70% of claims are settled out of court with no admission of liability (British Medical Association 2009). The NHS Litigation Authority (NHSLA) handles negligence claims on behalf of the NHS but this scheme will not cover private practice and other non-NHS duties. Therefore, all doctors are strongly advised to have independent clinical negligence cover. Psychiatrists are not a high-risk group for negligence claims. Although the NHSLA manages clinical claims for trusts, individual trusts generally have claims or legal services managers who tend to be the local contact for such matters and can be a good source of information and support. Find out who your legal service manager is within your organisation.

Dealing with underperforming NHS doctors

Rarely, a complaint or series of complaints may lead to questions about a psychiatrist's performance. These concerns may be reinforced by evidence from other sources such as appraisal, audit or complaints by staff. All NHS organisations are required to have in place procedures for handling concerns about a doctor's conduct, clinical performance and health (Department of Health 2003). Some groups of doctors, such as those involved in child protection, can be subjected to orchestrated campaigns and this should be remembered when assessing multiple complaints.

The responsibility for disciplining medical staff lies with the employing trust or board, but where issues about the practitioner's competence arise, the assistance of the National Clinical Assessment Service (NCAS), as discussed in the pages of this journal (Reference MargerisonMargerison 2008), can be sought for doctors in the UK. The service (which also accepts self-referrals) aims to work with all parties to improve the practitioner's performance. It does not act as a regulator and the referring authority has final responsibility for the case. A disproportionate number of referrals to NCAS are for psychiatrists and obstetricians (National Clinical Assessment Service 2006). Out of the new referrals, NCAS provided an alternative to exclusion in more than 80% of cases.

Dealing with concerns about a psychiatrist

When a concern arises, it is first and foremost important to clarify precisely what the issue is. The involvement of NCAS should be seriously considered. It may be helpful to discuss with them the appropriate action that needs to be taken. If it is deemed that the concern is not too serious, it should be dealt with informally without resort to formal disciplinary procedures. Sometimes allegations arise that are totally unfounded and malicious – it is important to identify these because they can have a lasting adverse effect on a professional's mental health.

Where the problem is serious and can adversely affect patient care it must be registered with the chief executive, who must then appoint a case manager. If a concern relates to the practice of a consultant or clinical director, the medical director should act as case manager and then appoint a case investigator to be responsible for leading the investigation and establishing the facts. A written record of the investigation should be kept and patient confidentiality respected at all times. The practitioner needs to be made aware of the allegations, be given the name of the case investigator and should be given the opportunity to see any correspondence relating to the case. They should also be given the chance to put their views and version of events across, and should be given a list of the names of individuals that the case investigator will interview. The practitioner is entitled to bring along a companion, who may or may not be legally qualified.

Should there be concerns about the safety of patients, it may be appropriate to consider restricting the doctor's performance. This may vary from restricting clinical duties to excluding the doctor from the workplace. If restrictions are put in place, the doctor must not undertake similar work with any other organisation. If it is suspected that a doctor is undertaking such work, the issuing of an alert letter needs to be discussed with the professional regulatory body, the Director of Public Health or Medical Director of the Strategic Health Authority.

In all instances where a serious danger to staff or patients is identified, the doctor must be referred to the regulatory body, irrespective of whether or not the case has been referred to NCAS. When exclusion is considered, it is important for NCAS to be made aware of this at an early stage so that alternatives are considered.

The case investigator should complete the investigation within 4 weeks of appointment and submit the report to the case manager within a further 5 days.

Exclusion

Exclusion may be necessary following a critical incident when serious allegations have been made or where the presence of the doctor is likely to hamper the investigation. The chief executive has overall responsibility for managing the exclusion procedure. Exclusion should last for the minimum necessary time and can continue for up to, but no more than, 4 weeks at a time. The justification for continued exclusion must be reviewed on a regular basis and should be discussed with NCAS. Any extensions need to be considered seriously and not be used as punitive measures. Consideration should be given as to whether the practitioner could return to work in a limited capacity or even in a non-clinical role.

Exclusion should usually be on full pay and the doctor must be available for work with the organisation during normal working hours.

Capability issues

A failure to deliver an adequate standard of care is described as a capability issue. In such instances advice from NCAS must be sought. The trust or board should try to identify issues early as well as providing support and opportunities for further training. As far as possible, mitigating factors need to be taken into account.

Sometimes a panel hearing may be necessary once the case has been considered by NCAS if the doctor's practice is such that no proposed action is thought to have a chance of success. The panel should be aware of the typical standard of competence. A capability panel can provide a written warning that an improvement in clinical performance is needed or it may even consider a termination of contract. Given the nature of the decisions, a robust appeal procedure must be in place.

Handling health issues

Professionals experiencing ill health should be offered treatment and as far as possible kept in employment, as long as they do not pose a risk to other parties. Adjustments to their clinical duties or workplace should be given consideration or a period of sick leave may be required. At all times, input from the occupational health service should be offered. If a practitioner's ill health poses a danger to patients and the individual is unwilling to recognise this or to cooperate with the proposed measures, exclusion should be considered.

Suspension

The GMC has powers to suspend doctors for matters in relation to discipline, health, personal misconduct and performance. It also has powers to suspend a doctor during investigation of allegations when it is believed that it is in the best interests of the doctor or the general public to do so. Suspension can occur in two ways: it can occur while an investigation takes place in relation to the performance of a doctor; or as the result of a final decision by the Fitness to Practise Panel, which could also result in erasure from the Medical Register.

Conclusions

Complaints are often viewed negatively by practitioners. However, they can bring to light both strengths and weaknesses and therefore may be viewed more positively. They potentially inform continuing professional development and should be viewed accordingly by the practitioner and the employing organisation.

Every organisation has a duty to ensure that staff members are given the opportunity to develop their potential in the context of a ‘fair-blame’ culture. When concerns arise, they should be dealt with promptly and in an unbiased manner. The aim of ensuing investigations should be to establish the facts rather than to build a case against a particular doctor. Patient safety issues should be given utmost consideration. The exclusion of the practitioner should be avoided at all reasonable cost, for (as highlighted above) the detrimental effects of such action on the individual concerned are only too apparent by reading the Society of Clinical Psychiatrists’ study (Reference TomlinTomlin 2003).

MCQs

Select the single best option for each question stem

1. 1 When replying to a complaint:

   1. a use as much medical terminology as possible

   2. b never apologise

   3. c never discuss your response with the complaints manager

   4. d always read the letter at least twice

   5. e aim to ignore the complainant's main concerns.

2. 2 The National Clinical Assessment Service:

   1. a receives fewer referrals about psychiatrists than would be expected

   2. b will accept self-referrals

   3. c has the power to erase doctors from the Medical Register

   4. d is part of the General Medical Council

   5. e advises exclusion for the majority of referrals.

3. 3 Suspended doctors:

   1. a subsequently have low rates of depression

   2. b have low rates of cardiovascular disease

   3. c find that their spouses are more likely to experience ill health

   4. d should never discuss their case with their defence organisation

   5. e should not consult their general practitioner.

4. 4 The NHS complaints system:

   1. a is due to change in 2010

   2. b will continue as a three-tier system

   3. c only deals with complaints about doctors

   4. d was first set up in 2002

   5. e emphasises local resolution as a first step.

5. 5 With regard to complaints:

   1. a all complainants are vexatious

   2. b they never benefit the psychiatrist

   3. c they result in disciplinary action in the majority of cases

   4. d trusts have to produce figures on complaints

   5. e the practitioner will not have to be interviewed regarding the complaint.

MCQ answers

1

d

2

b

3

c

4

e

5

d